Wednesday, November 30, 2016

by Michael DorfIn my latest Verdict column, I distinguish three risks that arise out of President-elect Trump's extensive business holdings: (1) That Trump will pursue his private interest at the expense of the public interest by, say, altering foreign policy or regulatory policy in exchange for favorable business deals from foreign governments or private actors, respectively; (2) that Trump and his family members will unjustly enrich themselves; and (3) that even the extensive appearance of corruption will spread corruption, which is a corrosive force. I argue that (1) and (3) are the bigger problems, not because I don't think Trump will use the power of the presidency to enrich himself and his family, but because I think the scale of damage from (2) is relatively small--at most a few tens of billions of dollars unjustly flowing into the Trump pockets. (I know, a billion here and a billion there and pretty soon we're talking about real money. I'm making a relative point.)

Trump has faced considerable criticism for failing to follow the practice of other wealthy elected officials who put their assets into a blind trust, thereby ensuring that they would make policy decisions based on the public interest. During the campaign and since the election, Trump and his spokespeople have said that he would turn over the running of his businesses to his adult children and that lawyers would look out to avoid conflicts of interest.

But this is far from an adequate solution. Even assuming that Trump himself plays no role in the running of his businesses--a heroic assumption given reports that he has continued to pursue his business interests since the election--Trump will know what sorts of policy decisions favor his businesses. Turning over day-to-day control over the businesses means that Trump might not know the impact of government policy on all of the details of his business empire, but he will surely know how, say, a change in the tax code on the depreciation schedule for golf courses will affect his businesses. Likewise, a foreign government that publicly announces that its diplomats will stay in Trump-branded hotels can thereby attempt to curry favor with Trump without his having to be involved in the running of those hotels.

Accordingly, turning over the day-to-day operation of the family businesses to other family members is nothing like creating a blind trust. It's not even like creating a vision-impaired trust.

Why doesn't Trump simply create a blind trust? The facile answer is that the nature of his business appears to preclude his doing so. A billionaire-turned-politician who made her fortune by founding a tech company can simply sell all of her ownership interest in the company and then give the assets over to a trustee to invest and manage. Neither the billionaire nor the public knows what investments are in her portfolio, and therefore there is no opportunity for those investments to distort her policy judgment. One might think that, by contrast, Trump is far too closely tied to his businesses to be able to divest ownership. Much of the value of the Trump empire is the Trump name, which itself is an association with the Trump lifestyle, as personified by Donald Trump. According to this objection, Trump can't put his assets in a blind trust because he is his assets.

But that answer is too facile. For one thing, it's often true that a wealthy person must sacrifice some of the value of her assets in order to govern without a conflict of interest. In the tech billionaire scenario, even after a company has gone public, part of its market capitalization may reflect the leadership of the founder. Think Apple during the Steve Jobs eras. When the founder divests, she somewhat undercuts the value of the company, including her erstwhile shares in it. Taking a haircut can be part of the price of providing honest public service.

Now, it can be objected, there's a very big difference between Apple and the Trump businesses. Even after Jobs gave up running the company and then died, Apple has been a very successful company. By contrast, the objection goes, the Trump businesses don't exist without Trump.

Yet this objection is dubious. For many years, a major element of Trump's business has been the licensing of the Trump name to properties that are owned and managed by completely separate parties. People nonetheless pay a premium for Trump-branded properties because they associate the name with luxury, even absent any direct connection to Donald Trump. Divesting Trump of the income stream from these licensing deals does not fundamentally change what is being paid for. Thus, the portion of the Trump business that consists in licensing the Trump name can readily be sold to a third party for the discounted present value of its future earning stream.

Meanwhile, those pieces of the Trump empire that consist in tangible goods and real property have a cash value. To the extent that part of their value comes from the Trump name, they also can be sold along with a license to use the name, much in the way that the pure licensing arrangements can be sold.

Is it possible that the Trump properties along with the license to use the Trump name would fetch a price somewhat lower than the full value of the Trump empire under Trump's supervision? Sure, but it's important to distinguish two different sorts of premium that would be forgone by Trump selling off his assets and the right to use his name.

One premium has to do with management. Despite Trump's spotty business record, there are undoubtedly people who believe that a "real" Trump property is worth more than one that is merely Trump branded. However, forgoing the premium associated with active management is very much in line with what other wealthy people forgo when they sell their identifiable assets and put the proceeds into a blind trust. So while the loss of the management premium could be real, asking Trump to forgo it as the price of public service does not treat him any differently from anyone else. His business is not unique in this regard.

However, there is a second premium that Trump would forgo by selling off his properties and the right to license his name: what I'll call the "corruption premium." By continuing to own properties that are clearly identified with him, Trump effectively invites foreign governments and private parties seeking favorable regulatory treatment to do business with Trump enterprises on more favorable terms than otherwise justified. If Trump were to sell his businesses, the buyer could not capture that additional income stream, because future business counter-parties would know that doing business with the Trump brand would no longer create a financial benefit for the president. Thus, the sale price would not include the discounted present value of that additional income stream. Selling would require Trump to forgo the corruption premium.

Yet that is exactly the point. Surely even Trump and his supporters do not think that he is entitled to receive the corruption premium. Why, then, is Trump unwilling to forgo it by selling his assets and the right to license his name for at most the same sort of discount that any wealthy person who has been closely associated with a particular company would have to absorb as the price of avoiding the fact or appearance of corruption?

Here's a useful thought experiment. Suppose that, after the election of 2008, Barack Obama had decided to cash in immediately. Despite having no prior involvement or experience running hotels or golf courses, Obama sold the rights to his name to a chain of reasonably well-managed hotels and golf courses under a deal in which he earned 20% of net operating profits. Would anybody think that this was anything but corrupt? And yet the money Obama would have earned from Hotel Obama and the Obama National Golf Course would be no different from the money that Trump will earn due to the corruption premium.

Trump has shown no interest in substantially distancing himself from his business interests, much less in divesting his current assets in favor of a blind trust. Given Republican control of Congress and his own impending control over the executive branch, he can probably get away with pocketing the corruption premium. That still doesn't make it remotely acceptable.

Tuesday, November 29, 2016

The new president-elect is acting as if he won a sweeping victory, even though precisely the opposite is true. The question now is whether anyone can or will stop him from abusing power, given that he has never shown any inclination toward personal restraint. How far could he go?

In several of my writings over the past year, and in particular in two recent columns (here and here), I have argued that the formal restraints on a president's power might be surprisingly ineffective. A president can do great damage by adopting a confrontational approach, essentially doing what he wants while shouting, "Who's gonna stop me?!"

I would like to be able to report that those concerns are overstated, but unfortunately I cannot. We really might be in the very beginning stages of witnessing how little we can do to stop the dictatorial impulses of a president who lacks shame or modesty.

On the other hand, it is also useful to think through the various ways in which a president can be stopped or at least slowed down. The restraints might be much less effective than we used to believe, but it would take time and effort to neuter them entirely.

A number of years ago, I came across a theory that tried to explain why the U.S. has never had a military coup. We have an incredibly powerful military-industrial complex, after all, and there are plenty of times in history in which an ambitious would-be tyrant could have pictured himself "saving" the country by deposing the civilian government. Why have there been no coups? Have we simply been lucky?

Although there are many factors at play, the one explanation that I found both surprising and convincing was that we have created a culture of distrust and competition among the four military services. The friendly competition of the annual Army-Navy football game is one small example, but the larger picture is one in which the members of each service genuinely appear to dislike those in the other services.

This distrust is so well-known that it shows up in countless movies, including the classic meme in which a bunch of Navy sailors and Marines end up in a huge bar brawl, simply because they are sailors and Marines. Similarly, in the film "Dr. Strangelove," there is a scene in which an Army general and an Air Force general argue angrily over whose men could win a battle.

In important and unfortunate ways, this ongoing competition is quite expensive. We end up paying billions upon billions of dollars when the Navy decides that it needs a fighter jet that is as cool as a new jet that the Air Force is building. And even though the Marine Corps is actually part of the Department of the Navy, the Marines compete separately for their own preferred military equipment.

That expense, however, has brought with it a standoff that has arguably contributed to the ability of the civilian government to continue to be in charge of the military, and not the other way around.

The question, in the face of the upcoming Trump presidency, is whether there are similar structural and behavioral barriers in other parts of the government and society that would prevent the worst-case scenario of the end of constitutional democracy from becoming reality.

Sadly, there are no guarantees. Still, there are good reasons to think that the federal government could be more resilient than we might think to a Trump-led attempt to erase all barriers to presidential power.

The most useful historical example is, of course, Watergate. There, it turned out that there were people of integrity who were willing to stand up to Richard Nixon's imperial ambitions, people who were not willing to say that whatever the president does is by definition legal.

The infamous Saturday Night Massacre in 1973, for example, found Nixon trying to fire a special prosecutor, but his attorney general (Elliott Richardson) and deputy attorney general (William Ruckelshaus) both refused to do so. They resigned, and even though Nixon then found someone (Robert Bork) who was willing to do his dirty work, the principled resistance of Richardson and Ruckelshaus led to sufficient public pressure to stop Nixon from steamrolling the rule of law.

The reason that the Saturday Night Massacre is such a memorable event, however, is that it was so unusual. There are plenty of ways in which Nixon could have tried to accomplish his goals without creating such a public showdown.

Similarly, my hypothetical example (hopefully a fanciful one) of Trump trying to have congressional leaders arrested would probably find many patriotic members of law enforcement refusing to obey that order. After all, people who have sworn an oath to uphold the United States Constitution might find it difficult to justify violating it so blatantly.

Of course, there are limits to these limits. Nixon did, after all, finally find a loyal assistant in Bork, and it is not clear what would have happened if Nixon had not appointed a new special prosecutor. And even the intra-military competition that I described above could surely be overcome if the circumstances were ripe.

Is there something even more basic that holds back an autocratic wannabe? In a recent conversation with a friend who served in the military and who has worked for years in various government security-related jobs, I learned about some of the ways in which the rank-and-file federal workforce -- including those in military and law enforcement positions -- are trained and conditioned in ways that (perhaps not by design) prevent the worst from happening.

Among people in the federal workforce, there is apparently what amounts to a prime directive: Stay in your lane. That means that there are things that each person is supposed to do, and other things that are someone else's responsibility. There are people who hold grudges literally for years after someone has gotten into their lane, and there are ways for the offended party to exact retribution.

What constitutes a violation of the stay-in-your-lane directive? Basically, everyone learns the rules of the organizational road, and they know both who is allowed to tell them what to do and what they are (and are not) allowed to do. When someone gets into someone else's lane, that means not only that the violator is breaking protocol but that his target will be forced to do something unusual, too.

Being outside of the organizational comfort zone is not merely a matter of feeling that something wrong is going on, but it threatens the person's sense of autonomy within the broader scheme of things. "I am part of an organization with a larger purpose, where my role is to do X, and I do it well. You can't just show up and tell me to do Y without warning or justification, and without going through the proper channels."

Again, it is not difficult to imagine how such an invisible restraint could be overcome by a sufficiently emboldened politician. Former Vice President Dick Cheney famously leaned on intelligence officers until they gave him the answers that he wanted to justify the invasion of Iraq, and it is quite understandable that no one told him to stay in his lane.

There are also positive reasons to value the federal bureaucracy, which is tragically underappreciated. For example, Paul Verkuil recently described the penny-wise-pound-foolish nature of efforts to shrink the federal workforce, showing how we need real expertise to carry out all of the functions of a modern government, especially revenue collection.

While all of that is true, the stay-in-your-lane imperative provides a counter-intuitive reason to appreciate bureaucratic behavior. A large organization that cannot turn on a dime to do many good things also cannot suddenly do many bad things.

Even a Trump Administration, therefore, is going to go through the paces of having government lawyers write memos about how and when executive orders can be rescinded, the proper procedures for modifying federal regulations, and so on.

Trump will certainly have to deal with legislative defeats if he tries to push through laws that are too extreme for as few as three Republican U.S. Senators. At least for now, he will not be able to say, "I deem that law to be enacted, so I'm going to ignore the normal rules of legislation."

There are plenty of shocking things that Trump can do when he
thinks that he can get away with them. For example, he has apparently decided that no one is going to stop him from carrying on his private
businesses from the White House, even though this creates enormous conflicts of interest that will affect every American. Trump is anything but subtle.

But there is still a vast bulwark of rule-abiding, loyal Americans who stand in the way of a Trump dictatorship. These people have good reasons, both professionally and institutionally, to prevent political appointees from cutting corners.

All of these norms and limitations, however, can be eroded over time. Therefore, the most important thing that believers in the rule of law must do for the foreseeable future is to be vigilant about the many ways that Trump and his people will try to beat down the federal workforce and violate established procedures.

Of course, Trump will borrow from the Republicans' well worn hymnal to denounce "entrenched bureaucrats," "government waste," and the usual litany of complaints about living in a world of laws and not men. His complaints, however, will merely prove that his power is still limited, which will be a reason to celebrate. We must tirelessly defend the rule of law.

Monday, November 28, 2016

by Michael Dorf
The announcement that President-elect Trump plans to nominate Jeff Sessions for Attorney General was newsworthy chiefly because of the extreme views Sessions has previously expressed and the actions he has taken with respect to civil rights and immigration. However, as a story in the New York Timeslast week noted, Sessions has also been highly critical of the Obama administration's policy of mostly forgoing enforcement of federal law with respect to marijuana in those states in which it has been made legal either for medical purposes or more generally. Because that policy takes the form of various internal Justice Department guidance memos (like this one in 2011 and this one in 2013), rather than a regulation, much less a statute, a new Attorney General could easily rescind it and change enforcement priorities.

Whether Sessions actually would attempt a federal crackdown partly depends on how much authority Trump delegates to him. It is easy to imagine that Trump would not be a "hands-on" president in this regard, given his lack of prior law enforcement experience and the press of other business. Trump's own views on the matter are unclear. Trump appeared to favor legalization of medical marijuana and a policy of federal deference to state law, but he did not campaign on marijuana-related issues and even if he had, there is reason to question how or whether what he said as a candidate would translate into policy.

There are also political considerations that might make the Trump administration reluctant to reverse the Obama marijuana policy. To be sure, if you superimpose the electoral map on the marijuana map, you find that there is a fairly strong correlation between Democratic voting in the 2016 presidential election and degree of marijuana legalization. The states Clinton won most handily tend to have the most liberal policy (legal recreational use) while the states that Trump won most handily tend to have the strictest policy. That might lead one to think that Trump wouldn't suffer politically from a marijuana crackdown.

However, purple states and even some quite red states (e.g., Alaska, Montana, Texas) have legal marijuana to one degree or another, and there are obviously a fair number of people who voted for Trump and for legalizing recreational use. Moreover, even some Trump voters who oppose state legalization might resent federal intrusion on federalism grounds. A federal crackdown on marijuana would likely be quite unpopular overall, and for that reason, it is possible to imagine Trump or his political people attempting to restrain Sessions.

Suppose they fail to do so and that Sessions cracks down. What would the consequences be? It's not entirely clear, but my best guess is that a Sessions-led federal crackdown would be a great boon for drug gangs. I'll now explain why.

As The Times story noted, the federal government lacks the resources to enforce federal marijuana prohibitions against small-time dealers, much less users, on anything like a systematic basis. Even in the days before states began legalizing medical or recreational marijuana, the DOJ and Drug Enforcement Agency (DEA) focused on major distribution networks, although occasionally the Feds would participate in "federal days"--jointly making arrests with local authorities and prosecuting some of the arrestees in federal court on federal charges. Even if the Sessions DOJ were able to conduct some more federal days without the assistance of local law enforcement, however, such an approach would not pose a serious risk of apprehension and federal prosecution of typical marijuana users and street-level dealers, given the federal resource constraints.

Accordingly, to be at all effective, a federal crackdown would mostly have two targets. First, as suggested in the Times story, the federal government could sue state authorities to enjoin those aspects of the state marijuana legalization regimes that do not merely fail to outlaw marijuana on state grounds but provide affirmative assistance to state-licensed growers and distributors in violating federal law. Second (and curiously unmentioned in the Times story), the DEA could readily go after easy targets, such as the retail marijuana shops and those state-approved growers that operate in the open. After even a few federal raids of such businesses, the state-legal open marijuana business would almost completely shut down, because the business would no longer be profitable.

But of course that wouldn't make marijuana disappear from states in which it is legal. A Sessions crackdown along the foregoing lines would return those states to conditions before legalization, albeit with an important difference. Before legalization, such states often devoted substantial law enforcement resources to arresting low-level dealers. They no longer do, and given the likely resentment of a federal crackdown, the state and local politics would mostly preclude returning to pre-legalization state and local efforts to combat marijuana.

Hence, the post-federal-crackdown landscape in states that have legalized marijuana could well be the worst of all possible worlds: No one would offer regulated marijuana under the state's regime, for fear of a federal raid; state and local government would not expend many resources to combat illegal marijuana; and federal resources would be inadequate to police illegal marijuana in a way that substantially reduces supply. The net result would be to increase the power of drug gangs and the associated violence.

At that point, Trump and Sessions would likely invoke the increase in drug-gang crime they had created as a basis for a further crackdown on . . . undocumented immigrants because "they're bringing drugs. They're bringing crime . . . ."

Saturday, November 26, 2016

It has been almost three weeks since Election Day and I’m
still sorting through the wreckage of my preconceptions and my
expectations.I’ve gradually realized
that four related but distinct sources of shock are amalgamated in my head and need to
be teased apart. These are:

1. Failed polls

2.Failing Democratic Party

3.Trump as President?

4.The Voting Public’s Tolerance

1.The utter failure of the polls to predict
the outcome in the key firewall states.

My initial shock was mainly because I just
didn’t see it coming.A look back at the
poll analyses indicates this was not simply a case of wishful thinking.In fairness, poll analysts got the key states of Florida and
North Carolina right—they were predicted to be more or less toss-ups.

But this was not the case for Pennsylvania,
Michigan or Wisconsin.For example, fivethirtyeight
had the probability of Clinton winning each of the firewall states to be 77%,
79%, and 83%, respectively, making Trump a long shot.

Most strikingly, in none of their forecasts, updated daily after
the conventions through Election Day, did the predicted vote margin in favor of Clinton EVER dip below 3.2% in Wisconsin and Michigan, and went no lower than 2.5% in Pennsylvania.In
each state, their final predictions were a victory margin of
3.7-4.3%. This, in my book, is a clear polling failure.

Why did this happen?Perhaps
it didn’t, and that recounts
could reveal that.The differences
between the two candidates in Wisconsin and Michigan are 1% or less.I don’t understand why there is any doubt
about the need for recounts in these key states, given the repeated allegations
that the “system is rigged” and the known attempts by foreign governments to
interfere with the US election. Just as the apparently losing
Republican governor in North Carolina was obviously justified to ask for a recount in his
election—the race there is just too close.

There is absolutely no question that Trump’s campaign and the Republican party would be demanding a recount if the situation were reversed,
and that it would be seen as legitimate. Why is it considered “being in denial” if the
Democrats/Greens ask for a recount?

That being said, I’m not aware of evidence that there were
irregularities of sufficient magnitude to change the results of the election. Yet
I don’t find it reassuring that the same polling statisticians whose models
utterly failed are now using similar models to “explain”
that the election results in Wisconsin are not due to irregularities.Just recount the votes!

So upon reflection, this shock is lessening, as there are
multiple rational reasons why the pollsters failed.When fewer than 10% of households targeted will
provide an answer to a pollster,
for example, it is difficult to believe that those who do are fully
representative of the other 90%--even assuming the original household targeting
was representative.

And, to be fair, pollsters everywhere are having a tough
time.The list of recent polling
failures encompasses not just Brexit, but also the Colombian referendum on the
peace deal with the FARC guerrillas, as well as the first round of the French
“Republicans” primary.

2.The Democratic Party is not a serious
political entity at the state governmental level in most parts of the US.It’s barely treading water in the House of
Representatives.

This is now glaringly obvious, and continues a trend that
has been going on for years.Conversely, the Republican/Tea Party is alive
and well.

The media obsession with the national election obscured the
fact that the state and regional figures are stunning. As Daily Kos neatly summarized:

Republicans [are] in
charge of 68 state legislative chambers and Democrats just 31.Republicans control both chambers in 32
states, including 17 with veto-proof majorities. Those 32 states cover 61
percent of the U.S. population. Democrats, meanwhile, control the legislature
in just 13 states, amounting to 28 percent of the country’s population; only
four of those chambers have veto-proof majorities.

In addition

Republicans now control the governor’s office in 33
states, amounting to 60 percent of the population, while Democrats control just
16 states with 40 percent of the population.

The Republican/Tea Party holds a seemingly unshakeable 55%
of the seats (238
to 194) in the House of Representatives, easily absorbing the handful of seats
lost to the Democrats. Given Republicans’ generally acknowledged superior ability
to gerrymander House districts, it may just be a matter of time before the Republican-dominated
state governments adopt allocation of electoral votes on the
basis of congressional districts, This is, at present, only done in Maine and Nebraska but was more popular in the past.

But perhaps this isn’t necessary. Clinton’s slender
advantage in the popular vote makes the electoral college vs popular vote
results a red herring.I find
convincing Trump’s recent boast that, if the system were based on the national
popular majority, he would have focused his campaign in New York, Texas, and
California and likely picked up the needed votes there.

I have to admit that I had drunk the Kool-Aid in believing that,
as the proportion of the electorate comprised by whites continues to shrink, a great
demographic transition
will make the Democrats the inevitable
party—Georgia and Texas are soon to fall!

One can blame gerrymandering, differential funding issues,
voter suppression laws—all of which I’m convinced play a significant role--but
the bottom line is that the Democrats are clearly not inevitable. There is little reason to buy the underlying
assumption that the vast majority of Hispanics and blacks will always prefer an
establishment
Democratic candidate to a Republican maverick, or that even if they do, they
will be sufficiently motivated to come to the polls.

3.The supremely unqualified and buffoonish
Donald Trump will be President, and the face of the US to the world, for at
least the next 4 years

In certain ways Trump
is most reminiscent of Ronald Reagan.This
is simultaneously painful and oddly comforting:while the 8 years of Reagan were brutal in a lot of ways, we did survive
them.

In an incisive piece, Frank Rich highlighted
the striking similarities of Reagan and Trump as candidates.Trump’s fabrications and pathological
mendacity are well established.But Reagan’s

… fantasies and factual errors [were] so prolific and often outrageous
that he single-handedly made the word gaffe a permanent fixture in America’s
political vernacular.

In light of his subsequent diagnosis with Alzheimer’s, I
find especially intriguing Reagan’s repeated claims
to have personally filmed the liberation of a concentration camp in WWII, when
he actually spent his war years in Hollywood.

As President, Reagan named as cabinet heads people
inherently opposed to the mission of their agency, whether environmental protection,
stewardship of public lands, or enforcement of civil rights.Infamous examples included Anne Gorsuch at
EPA, James Watt as Secretary of Interior, and Ed Meese as Attorney General. Trump seems headed in the same direction.

Trump is obviously little interested in the details of the job
of President.There is the bizarre
account of his son offering the vice presidential slot to John Kasich with the
carrot that he would be “in charge
of foreign and domestic policy,” while Trump would be preoccupied with “making
American great again.” This, unfortunately, bodes poorly for oversight of
subordinates.

President Reagan’s own hands-off management style gave rise
to the major scandal of his presidency, Iran-Contra.He was supposedly blissfully unaware that his National Security Council was secretly selling armaments to America’s arch-enemy Iran, whom
his administration had only recently designated a “state sponsor of terrorism.”

Despite his subsequent denials, these arms sales were ostensibly
to help free American hostages held by Hezbollah in Lebanon, and to improve
relations with Iran.Notoriously, they were
also used to divert funds from the proceeds to the Nicaraguan rebels (Contras)
fighting the existing government, in direct defiance of the Congressional
restrictions via the Boland Amendment.

It’s worth recalling that several very high ranking Reagan administration officials were eventually indicted
(Secretary of Defense) and/or convicted of felonies (e.g., two National
Security Advisors; Assistant Secretary of State; high ranking CIA
officials).Yet almost nobody went to
jail: they were either sentenced to probation, or had their convictions
overturned, or were later pardoned by Bush Sr.

While no evidence emerged that Reagan directly approved the
individual actions, he was strongly criticized by the Tower
Commission for lack of critical review, accountability, and performance
review of his own National Security Council.

One big difference from Reagan is that Trump seems mainly focused
on the progress of his business and touting how smart and rich he is. Because Trump
“knows”
that, from a legal standpoint, “the president can’t have a conflict of
interest,” I don’t see any reason to
believe he will do ANYTHING AT ALL to managerially and legally distance himself
from his businesses.Particularly
worrisome is the current media perception that the legal
community agrees that he can freely commingle his business with that of the US
government, as long as he doesn’t benefit from gifts from foreign governments.I can’t even begin to estimate how quickly
this will seriously tarnish the US image around the world.

4.Half of the US electorate voted for a
candidate who was openly misogynist and racist, used threatening rhetoric, and explicitly
ridiculed many American values and traditions.

This, for me, is the most difficult aspect to digest.It would have been only slightly less painful
if Clinton had eked out a majority.

Perhaps there are mitigating factors.We know that Trump as a candidate would say
virtually anything, and reverse himself the next week (or day).Perhaps most “decent” Trump voters-- everybody
has people in their family they love who voted for him—were clever enough to
never take seriously almost anything he said, recognized him for the essential
conman he is, but decided that he embodied “change” and was neither the
establishment nor the diabolical Hillary.And assumed he couldn’t or wouldn’t implement the really vicious stuff.

And maybe many of the 53% of white women who voted for him
think most men essentially see women as Trump does, or would be like Trump if
they were in powerful positions.

And I’m wondering what the role was of The Apprentice, where week after week and year after year Trump
portrayed himself as an authoritative, tough but Solomonic leader worthy of
respect and awe.I’ve previously suggested
that TV shows glorifying torture, or showing a competent, intelligent black
president, or with openly gay characters, may have helped shape public acceptance
of previously taboo topics. Could The Apprentice have imprinted an enduringly
positive, if not Presidential image of Trump in the minds of the tens of
millions of viewers?

Nonetheless, as a candidate Trump really did openly stoke
the flames of racial and religious resentment, scapegoated minority groups, and
gleefully talked about torturing families of suspected terrorists. In a time of
serious economic challenges, but certainly not crisis, half the voting
population supported him.

It is true that he
doesn’t have a history of actually putting into practice his violent
rhetoric.But what will happen if there is a real depression—will we elect a “change” candidate who actually had a track
record of violent, racist activities?

What I didn’t hear, and still don’t hear, is clear
condemnation of his misogynist/racist/nasty aspects by the “decent” people who
voted for him. People admitting there is a point beyond which “he could go too
far.”I guess I’m no longer sure where
that point is for half the US voting population.

Friday, November 25, 2016

by Michael Dorf
Today is Black Friday. I won't be spending it fighting with other shoppers for discounted consumer goods, but I also won't be spending it blogging. Here in central New York, an early snowfall has led our local ski slope to open early, so I'll be there trying and failing to keep up--or more accurately I suppose, down--with my fifteen-year-old daughter. For those readers who feel deprived of their daily fix of DoL, I suggest this "classic" or perhaps "pre-read" seasonal post. Neil, Sherry, Eric, and I will be back again with new content, beginning on Monday.

Thursday, November 24, 2016

By Eric SegallThanksgiving 2016 is not Thanksgiving as usual for my
family or my country. On a personal note, my mother’s birthday was November 22,
and my parents’ wedding anniversary November 25. Since my mother passed away last
December, this will be the first Thanksgiving celebration in over twenty-five
years with one Segall missing from the holiday table.

Instead of feeling thankful this week, I wake up every
morning thinking about my mom, the space she left behind, and also how President-Elect Trump came to be and what our future holds. I am more anxious this week than any Thanksgiving I can remember.

I suspect that I am not alone in my fear for the
next few Thanksgivings. I fear the President-Elect will try to implement his
hateful ideas about Muslim registries, a southern border wall, and support for police
aggression and misconduct. I fear that his Administration will ignore climate change and release American businesses from most environmental
regulation which may yield short-term profits in exchange for long term
disaster.

I worry about the Supreme Court which, with just two new
Justices, could turn strongly to the right until I am in my grave (I am 58). If
that occurs, the Court will once again be the best friend of the far right, insensitive to the civil rights of minorities and the accused and overly sympathetic
to massive corporations and majority religions (Justice Alito’s speech at the
Federalist Society last week was frightening in this regard). It has happened before (1900-1936), and it is likely to happen again. I hope Justices Ginsburg, Breyer, and Kennedy (and yes the rest of the younger Justices too) have at least four happy Thanksgivings to come.

Mostly though, I fear for this country’s young women
(I have three daughters). Our President-elect’s sexually aggressive attitude towards
women could negatively impact our son’s attitudes in so many different and
terrible ways and for longer than his Administration lasts. The owner of beauty pageants (how do they even still exist?) who
blamed Megan Kelly’s hard questions on her cycle, called Rosie a fat pig, and stated
proudly his own ability to grab women’s private parts, is now our Role-Model in
Chief. Given these attitudes, will his Civil Rights Department continue the important
work under Title IX which has helped so many women and girls develop more
positive identities and will his Administration open its highest positions to
women? I wouldn’t think so.

So with both personal loss over the passing of my mom,
and deep fear over the future of our country, I think hard about what I have to
be thankful for, and mercifully the answer is a lot (and I hope this is true for
you too). I love my wife and I am loved by her. My three children and my
brother’s three children are all amazing in their own unique ways full of
spirit, love of life, and resilience. I am grateful for my job, which allows me to
see new generations of lawyers and leaders come and go and gives me varied
platforms to pontificate about law, loss and joy. And, I see a country
that is still free, where people have the right to publicly complain if their
free elections result in leaders they strongly oppose and policies they fear.

But, for the first time in my life, on this
Thanksgiving Day, 2016, I feel the need to say a prayer. I pray that our President-Elect
will realize his views on women need to change and that even symbolic sexist
gestures by the President of the United States can cause real damage. I pray that
he will see that Muslims aren’t the problem but that it is the fringe elements
of Islam, just like it is the fringe elements of white Christianity, that pose
the greatest danger. I pray that he gives some of his top Cabinet positions to
moderates who will speak the truth to him even when he doesn’t want to
hear it. I pray he listens seriously to scientists warning that our changing climate
presents our biggest risk. Mostly, I pray that the largeness of the office, the
awesome responsibilities it entails, and the enormity of his job convince him
that humility and open-mindedness are essential elements of leadership, and
that knowing what you don’t know is as or more important than acting on what
you do know. Hard-nosed quick decision-making based on intuition rather than data may
garner excellent ratings but it does not make for good government.

Am I optimistic? Not really. But for the sake of my children,
and their children, on this day of Thanksgiving, I am going to be thankful, and
I will dedicate myself to doing whatever I can to make my family safe, secure, and happy and this country a place that can live up to its ideals of liberty, equality and justice... for all. I hope that is a
prayer everyone can join, not just for today but for the rest of our
Thanksgivings as well.

Wednesday, November 23, 2016

In my Verdict column for this week, I write about the argument that many have made for why animals lack rights and may therefore be slaughtered and consumed with impunity by humans: the fact that animals lack moral agency. Quite apart from the responses I give in my column, it is also the case that animals have what one might call emergent morality, as discussed by ethologists such as Jonathan Balcombe. In this post, however, I want to focus on a different issue that comes up in debates about animal rights: the notion that unlike frivolous uses of animals (such as in dog fighting), which are morally wrong, the use of animals for food is a necessity and therefore morally beyond reproach.

We see this argument play out in different forms. People will say that they are against sport hunting, for example, but that they are fine with hunting for one's food, because then one is hunting for a necessity rather than a luxury. People will also say that they are opposed to cruelty to animals, and our laws reflect this value (by prohibiting such cruelty), but such people regard the infliction of suffering on animals as necessary and acceptable when it is an essential part of raising those animals for food. For example, kicking a cow for fun would be considered cruelty, but taking a cow's newborn baby calf away from her and thereby inflicting far greater suffering than would a kick is acceptable conduct, because it is necessary to the dairy industry (which impregnates cattle and then steals what was to be their babies' milk for human consumption).

The way people think about food and animals resembles a false syllogism that appears in the Woody Allen Movie Love and Death. In the movie, Woody Allen's character states as follows: "All Men Are Mortal. Socrates Is a Man. Therefore, All Men are Socrates." The analogous syllogism that seems to operate for people discussing the use of animals for food is as follows: "All Humans Need Food. Animal-based Food is Food. Therefore, All Humans Need Animal-based Food."

In most of the world, people who have access to animal-based foods also have access to plant-based foods. In fact, animal-based food is in some impoverished parts of the world considered a luxury, so that plant-based staples such as rice and beans are the rule. Plant-based foods (and mushrooms, technically a fungus rather than a plant) can be prepared deliciously and are nutritious and, even according to the conservative Academy of Nutrition and Dietetics, can meet the needs of people in every phase of life, including childhood, pregnancy, and nursing, and offer benefits in resisting chronic diseases (such as heart disease and diabetes). Virtually no one has to eat animal-based foods (just as almost no one is Socrates).

So when you come across (or yourself advance) the argument that hurting and killing animals for food is "necessary" and therefore less objectionable than other uses of animals (such as fur coats or circuses), remember the syllogism. That people need to eat is obvious, but they do not need to eat animals and their hormonal secretions. When they choose nonetheless to do so, they are therefore unnecessarily causing great suffering and distress among our fellow earthlings. And as most people will acknowledge believing, it is wrong to cause unnecessary harm to nonhuman animals. Happy Thanksgiving.

Tuesday, November 22, 2016

Let us start with two big ifs. If Trump and the Republicans do not succeed in turning future elections into shams, and if liberals and others who opposed Trump can find their way to a winning political strategy, then the future will not be as bleak as it currently appears to be.

Regarding that first big if, I recently argued that there are very good reasons to worry that Trump and his party will soon change the rules to make future elections nearly unwinnable for Democrats. I also argued, however, that believers in democracy have no choice but to try to prevent that from happening and, in any case, to compete even in heavily rigged elections.

Even if small-d democrats are successful in preserving free and fair elections, however, we then move on to that second big if regarding a winning strategy. Unfortunately, the early indications are that the post-election conversation among liberals (and those who claim to be sympathetic) has already gone seriously off the rails.

Part of the problem is that people are acting as if Trump won big. We evidently need to remind ourselves that stunning is not the same as sweeping. We must remember that it would only have taken the equivalent of roughly half the population of Erie, Pennsylvania -- spread across only three swing states -- to turn Hillary Clinton's popular vote victory into a win in the Electoral College.

That is not a minor point. Yes, elections have binary outcomes, and losing is losing. But acting as if "the voters" en masse repudiated Clinton and the Democrats seriously misses the point. Acting like you were a big loser makes people think you are a big loser. More importantly, it makes you think so yourself.

Yet even a sober-minded commentator like Emma Roller approvingly quoted the liberal mayor of Madison, Wisconsin, who faulted the Clinton campaign because "they wanted not just a victory, but a smashing victory — actually, the kind that Donald Trump had." Clinton might have miscalculated by trying to swing Arizona and Georgia, but Trump did not win big. He barely eked out a win, and we should not let anyone forget it.

Still, we do need to ask why the election was even close enough for Trump to snake his way to that narrow win. Was this not a winnable election for the Democrats, and was Trump not the most farcically unqualified and repellent candidate in U.S. presidential history? Yes, and ohmygod yes.

This means that post-election conversations need to focus on the important lessons from November 8's shocking outcome. Unfortunately, the leading contender for the new conventional wisdom -- that Democrats focused on "identity politics" rather than real issues -- is both vacuous and dangerous. It may, in fact, be the single most ridiculous political argument currently on offer.

The most prominent version thus far of the anti-identity politics argument arrived in the opinion section of this past Sunday's New York Times. A Columbia professor named Mark Lilla argued that "American liberalism has slipped into a kind of moral panic about racial,
gender and sexual identity that has distorted liberalism’s message and
prevented it from becoming a unifying force capable of governing."

Other than offering some snarky and unsupported remarks about liberals being "narcissistically unaware of conditions outside their self-defined groups" and college students being "encouraged to keep this focus on themselves," however, Lilla never actually says why it is such a bad thing to be concerned about the rights of people who have been -- and are being -- discriminated against.

Indeed, even the most overwrought caricatures of campus life from the anti-intellectual right are built upon faulting over-pampered white upper middle class kids for exercising their privilege by caring about things that do not really affect them personally.

After all, the vast majority of college students demonstrating in favor of, say, transgender bathrooms (the favorite example from eye-rolling types like Lilla) are not themselves transgendered. The people who support Black Lives Matter or who worried about Trump's anti-Muslim hate-mongering or his threats to destroy the lives of millions of Latinos living in America are not being narcissistic or failing to be aware of conditions outside of themselves.

The only point that the anti-identity politics screeds are really making is that liberals supposedly focused on the concerns of the wrong groups of vulnerable Americans. As I will argue momentarily, that is ultimately also a fatuous argument. But it is important to emphasize here that the accusation that liberals are only worried about "self-defined groups" is a content-free accusation that can be adapted to any purpose and merely boils down to: "The rest of you liberals are not focused on what I think you should be focused on."

This free-floating indictment of liberals then leads Lilla to make the jaw-droppingly false empirical statement that identity politics "never wins elections — but can lose them." The entire case against the Clinton campaign, however, has been that she thought that she could reassemble the identity groups that allowed Barack Obama to win two presidential elections.

Of course, because the phrase "identity politics" now stands merely for things that people like Lilla associate with losing elections, he could easily claim that Obama somehow did not engage in identity politics, thus preserving the tautology that liberals in 2016 (but not in 2012 or 2008) were too worried about the wrong people.

The most worrisome part of this argument is how closely it resembles the historic error that Democrats committed after their last epoch-defining loss. In the aftermath of Ronald Reagan's landslide reelection in 1984 (which actually was a landslide), Democrats fatefully accepted Republicans' framing that liberalism was too focused on "special interests."

Like the term identity politics now, blaming Democrats in the 1980's for being a party of special interests also had no actual content. Yet it served the same purpose, blaming election losses on the idea that protecting and expanding the rights of people is somehow illegitimate.

This false framing is dangerous today for precisely the reason that it was dangerous in the 1980's and 1990's. Yes, Bill Clinton won twice by bashing labor and ending "welfare as we know it" -- jettisoning those supposedly special interests -- but he did so by adopting the policies that have continued to undermine the lives of the very working class voters who turned against his wife in 2016.

What, after all, was the biggest economic issue that Trump used to bash Hillary Clinton? Trade agreements, especially the North American Free Trade Agreement (NAFTA). I remember well how liberals -- the same liberals who had been accused of being captured by those dreaded special interests -- fought against Bill Clinton's "war room" strategy that resulted in the passage of NAFTA with overwhelming Republican support.

As Monica Potts put it last week, the working class voters who voted for Trump this year apparently blamed Obama (and Hillary Clinton) for "policies they must have known were
at least 30 years old—Ronald Reagan–era policies—because that’s how long
it’s been since good factory jobs started leaving."

Hillary Clinton, meanwhile, completely understood that the Trump base included "people who feel that the government
has let them down, the economy has let them down, nobody cares about
them, nobody worries about what happens to their lives and their
futures, and they're just desperate for change."

And it was not as if liberals had not been thinking and writing about this for years. For example, at least since the beginning of the Great Recession, I have been writing almost obsessively about how economic stagnation could lead to dangerous political possibilities, including the rise of neo-fascist demagogues.

During this year's campaign, I argued that "if there is going to be any hope for political progress in the years
ahead, people of good faith will have to learn how to peel off those
voters" who, because of their economic pain, are willing to hold their noses and vote for a charlatan like Trump. Also: "Reaching the good Americans who nonetheless currently support a campaign
based on bigotry is one of the keys to future political progress."

It is true that Clinton did not convince enough white working-class voters in the industrial states to vote for her. Of course, she could have won without them, too, so focusing on this issue is itself indicative of how the post-election conversation is being driven by the choice -- and it is a choice -- to say that white people are not getting enough attention.

I have always believed that the concerns of working people (of all races) should be a central pillar of liberal politics, which means that I agree with Randi Weingarten that social issues and class issues should be part of a "both/and" approach to politics. That, however, is not the same thing as saying that Clinton, or liberals more generally, care too much about "identity" issues.

After all, the biggest mystery not only of 2016 but of the last generation is why the voters who are most harmed by Republican (and Bill Clinton's Republican-lite) policies -- reducing wages, making workplaces less safe, allowing Wall Street to prey on the economically desperate, and so on -- continue to vote for the people who are most responsible for these voters' pain.

Hillary Clinton, with the help of Bernie Sanders and the progressive wing of the party, advocated policies that would at least begin to ease the pain of the vulnerable middle class. Trump promised to cut taxes for the rich.

It will be useful and interesting to try to understand why these economically vulnerable voters do not express their economic anxiety by supporting politicians who offer them actual policies that could help ease that pain. Or why they failed to credit Democrats for the very real economic gains of the past seven years (including, at long last, some much-needed increases in workers' incomes).

But the idea that Clinton and the Democrats did not offer -- or did not campaign on -- bread-and-butter issues is simply to engage in 20/20 hindsight. "Who didn't vote for her? White working people? OK, then obviously she misallocated her time between social and economic issues." Brilliant.

And it is not just Clinton herself who advocated policies that would help those Trump voters. David Leonhardt's recent column describing the successful policies of a progressive Democratic governor in Delaware shows how liberals have been able to run on policies that are focused on economic improvement for all, and to be successful when the voters have given them a chance.

When Clinton's win looked like a lock, my concern was that the Republicans' continued obstruction for the next four years would continue the economic stagnation that has caused working class people paradoxically to reward Republicans. My concern most definitely was not that Clinton and the Democrats did not have pro-worker policy ideas.

It is now possible that Trump and the Republicans will go for broke with their regressive policies, badly overplaying their hands and then being blamed when wages do not go up, when more and more people lose access to health care, and when the people who do work in factories are exposed to poisons and other hazards in the name of deregulation.

If that happens, and if it is still possible for Democrat-leaning voters to vote, then the Democrats' actual liberal policy ideas will allow them to take power back from Trump and the Republicans. It is a harmful diversion, however, to fault Democrats for caring about social issues. It is simply not necessary to abandon minorities and other vulnerable groups in order to win.

Monday, November 21, 2016

President-elect Trump's selection of Michael Flynn for National Security Director and his plan to nominate Jeff Sessions for Attorney General and Mike Pompeo for CIA Director make it likely that, so far as domestic security policy is concerned, the Trump administration will be every bit as anti-Muslim, anti-civil rights, and anti-undocumented immigrant as his campaign was. Yet the actual conduct of foreign policy overseas might not change much, even with these hardliners in place.

For one thing, it remains possible that Trump might name more pragmatic characters to other key positions, such as Secretary of Defense and Secretary of State. Moreover, even if Trump finds a few more likeminded hardliners for the top spots, the important under-secretary and deputy positions could go to more traditional Republicans. Trump campaigned in the primaries and in the general by running against the policies pursued by (the second) President Bush, but there may not be enough people who share Trump's views and also have the relevant foreign policy and military skills to fully staff a minimally competent administration.

To be sure, some of the differences probably won't matter. VP-elect Pence and the vast majority of Republicans available for a Trump administration favored the 2003 invasion of Iraq. Trump claimed during the campaign that despite his support for the war in a January 2003 appearance on the Howard Stern show, he actually opposed the war. The claim is unverifiable but also at this point largely irrelevant. A president has some powerful tools at his disposal, but a time machine is not among them. Many people who favored the Iraq invasion or who at least favored authorizing President Bush to invade because they thought he would use that authorization as leverage now recognize that the war was a colossal blunder. The relevant question is how to move forward. The fact that some people working in an administration took one view on a past policy question and others took a different view does not in itself preclude them from working together on new questions.

However, past support for the Iraq war is not the only division likely to surface. Policy towards Russia is an important current area of disagreement between Trump and much of the Republican Party. With the exception of the small Rand Paul wing of the GOP, most Republicans are probably closer to the position staked out by Hillary Clinton during the campaign, which basically goes like this: Vladimir Putin is an autocrat at home who perpetrates gross human rights violations abroad (most prominently in Ukraine and Syria); there can be some limited cooperation with the Putin government on areas of common interest, but overall the U.S. and its allies should pursue a policy of containment.

Trump's view seems to be something more like what has traditionally been called "realist" foreign policy, viewing Putin as someone whose war crimes are simply not our concern, so long as they do not directly impinge on our national interests, narrowly defined. I put "realist" in scare quotes to reflect the fact that the alternative in this context is not exactly "idealist" in the sense in which that term is usually opposed to foreign policy realism. The bipartisan consensus that Trump opposes is not exactly rooted in a concern for human rights or spreading democracy per se (in the way that, respectively, Jimmy Carter's and George W. Bush's foreign policy idealism were); the bipartisan consensus is also a kind of realism, albeit taking a different view of Putin's goals and intentions, as well as how best to respond to them.

But let's suppose for the sake of argument that all of the people Trump appoints to carry out foreign policy share or at least try to pursue his views about Russia. There will still be contradictions because of the complexity of the world situation, especially in the Middle East. And that's not even counting the complexity introduced by the potential for conflict between Trump's business empire and the national interest.

Consider soon-to-be National Security Advisor Flynn's view that the overriding concern of U.S. policy ought to be winning what he regards as the ongoing "world war" with Islamist militants. What does that mean in practice? Partly it leads to rapprochement with Russia, which shares an interest in combating ISIS, especially in Syria but elsewhere as well. Greater cooperation--indeed, even greater efforts to avoid confrontation--with Russia probably means softening or even eliminating support for the Free Syrian Army and other non-ISIS forces now battling the Assad regime.

However, there's still an important tension: A tilt away from opposition to Assad is in practice a tilt towards Assad, which means aiding, even if unintentionally, Assad's Iranian benefactors. Yet Trump and Flynn have also made implacable opposition to Iran another plank in their Middle East policy. As a practical matter, warming relations with Russia with respect to Syria mean aiding Iran. Rapprochement with Russia and isolation of Iran are contradictory goals.

Can these goals be reconciled? One strong possibility is that Trump, Flynn, and the rest of the incoming hardline team are simply Islamophobes who have not thought through the contradictions that are seemingly inherent in their position. However, for the sake of argument, let's give them the benefit of the doubt. How one might try to rationalize the Trump/Flynn approach?

The best that might be said is that the U.S. should oppose militant Islamists, regardless of whether they are Sunni (like ISIS and al Q'aeda) or Shia (like Iran and its Assad-aligned Hezbollah proxies). Yet while that's a coherent approach in theory, it can't really be executed effectively in the current context of a Sunni-versus-Shia civil war in Syria, Yemen, parts of Iraq, and the broader region. For example, Assad and the Russians are not Islamists, but aiding their cause in Syria means aiding the Iranian Islamists.

To be fair, the internal tension in what will likely be the new administration's policy is not a problem created by Trump. It's a problem created by the fact that, with two exceptions I'll discuss shortly, none of the actors with any real power in the current Middle East are closely aligned with American interests, much less values. The main actors that either do not share US values and interests or do so only occasionally are:

In the heady days of the Arab Spring, it looked like there might also be liberal democracies with which the U.S. could find common cause, but the only success story is Tunisia, a bit player in the region. U.S. foreign policy for several decades has relied on finding areas of common interest with moderate autocracies, of which the only real examples were Jordan and the oil-rich but small states of the eastern Arabian peninsula, while turning a blind eye to the true nature of the more important regimes in Egypt and Saudi Arabia. Turkey could have been an important democratic ally, but even before its turn towards repression, Turkey (understandably) seemed more intent on avoiding involvements in conflicts in the region.

The two real exceptions, i.e., reasonably powerful entities in relatively sensible alliance with the U.S., are Iraqi Kurdistan and Israel. Kurdish fighters have played an important role in the war against ISIS. However, there are limits to what can be accomplished given the size of the Kurdish force. Moreover, both the Kurds and the Israelis have enough trouble looking out for their own interests that neither can be expected to be that much help in advancing U.S. interests in the broader region. Perhaps in a Nixon-to-China mode, under Trump there is some hope that Netanyahu will be more accommodating of the U.S. interest in avoiding deliberate provocations of Palestinians than he has ben during the Obama years, but even if so, that is a matter of avoiding further harm, not securing greater aid. In any event, too close an alliance with either Iraqi Kurdistan or Israel is likely to be counterproductive, given the hostility of other allies, e.g., Turkey's hostility to Turkish Kurds who feel themselves in solidarity with Kurds elsewhere, and Israel's tendency to unite even otherwise mutually hostile Islamist forces--such as Sunni Hamas and Shia Hezbollah--in alliance against Israel.

What should Trump do? I don't know, and even if I did there's no reason to think that Trump's foreign policy team would listen to the likes of me. Meanwhile, color me extraordinarily skeptical of the idea that any single guiding principle can be implemented successfully. That's true whether it's an emphasis on human rights, Bush's effort to spread democracy, or the Trump/Flynn idea that saying the magic words "radical Islamic terrorism" will somehow bring victory, whatever that consists in.

The fact is that in the Middle East and elsewhere the U.S. has a number of goals that will come into conflict with one another. In the end, therefore, I suspect that Trump's policy will be as much of a muddle as Obama's has been, at best reducible to trying to avoid further involvement of US troops in active combat, while focusing on counterterrorism. The Trump administration will be substantially less concerned about its own and others' human rights violations than the Obama administration has been, but that might not make a big difference on the ground. The human rights situation in Syria (and parts of the broader region) is already appalling.

Put differently, we can expect the Trump policy to be basically Obama's policy minus the criticism of Putin and Assad, plus renewed torture, civil rights violations, and a Gitmo renaissance.

Friday, November 18, 2016

The aftermath of any election loss will inevitably involve endless second-guessing, Monday morning quarterbacking, and even ugly recriminations. In 2016, with the stakes as high as they were, and with an opponent who seemed so easily beatable, the razor-thin swing state losses by Hillary Clinton immediately led to finger-pointing and anger among Democrats.

If done correctly, that can be a healthy process, albeit a painful one. The alternatives to hashing out what went wrong, or to being angry about losing, are to refuse to learn from mistakes or to pretend that it does not matter at all. But even though introspection is a good thing, there are plenty of bad ways to respond, too.

The most important question that Democrats are now trying to confront is how they lost working-class voters, especially in the states that used to be the world's powerhouses of steel, automobile, glass, rubber, and other manufacturing industries. The fact is that Hillary Clinton did not, as her intramural critics would now have us believe, forget about or drive away those voters. Before I get to that issue, however, it is helpful to think about some other standard post-election questions.

The first such question is whether the Democrats nominated the wrong person. Unsurprisingly, supporters of Bernie Sanders are now saying that he could have beaten Trump. The fact is that we can never know if that is true, although it might be. He certainly would not have had to spend months dealing again and again with stories about his emails.

Of course, Clinton's supporters are also saying that Sanders supporters, especially in his campaign's last stages and at the Democratic National Convention, did enormous damage by convincing young people not to bother to vote. We cannot know whether that is true, either, but we must at least acknowledge that low turnout among younger voters certainly cost the Clinton campaign -- and the country.

The strongest case that I have seen for the proposition that Sanders would have beaten Trump is from my co-blogger Michael Dorf. I encourage readers to look at his argument, because it is a strong case. Even so, I find myself in the rare position of disagreeing with Professor Dorf. (This is not as big of a disagreement as it might seem, because both he and I readily admit that it is a very open question with plenty of unknowable counterfactual guesswork.)

The particular point with which I disagree is this: "Sanders probably would have won, partly because he would have held the
upper Midwest but mostly because the kind of irrational hatred that many
voters--including moderates--felt for Hillary Clinton takes years to
build."

It is certainly true that Clinton suffered from the decades of abuse that have been heaped upon her by Republicans. Moreover, as I noted in a column shortly after Election Day, the nonstop attacks on Clinton fed the media narrative that turned everything she did into a series of supposed scandals and lies that never actually amounted to anything.

Therefore, having Clinton at the top of the ticket forced the Democrats to play defense in a slanted environment where Clinton's efforts to defend her record were dismissed as mere self-serving spin. Once the narrative was set, Clinton's options were limited.

Why, some people have asked, did she fail to fight back and correct the record? Actually, she did fight back, but there was only so much that she could do. In my column, I likened the media's treatment of Clinton to the way the cool kids in high school laugh at the earnest, brainy kid. Has any victim of that kind of treatment ever gotten a fair shake when she confronted her detractors? "Hey, Biff and Missy and Tank and Buffy, you're being unfair to me!" That always turns out well.

So, nominating Clinton instead of Sanders certainly did give Republicans the opportunity to use their built-up arsenal of attacks against her. But there is one thing that the Republicans have been doing even longer than sliming the Clintons, and that is red-baiting the left. Thirty years of Clinton hating versus seventy-plus years of red-baiting?

Imagine the howling from Republicans about Sanders's self-labeling as a Democratic Socialist. Now imagine it every hour of every day from May through November. That just might have had some effect on undecided voters. You thought that Rudolph Giuliani looked unhinged when attacking Clinton?

Remember, Republicans describe something as simple as progressive taxation as "class warfare" that is tantamount to collectivist labor camps. Why should we expect them to respect the modifier democratic when they refuse to acknowledge that socialism, communism, Marxism, and Stalinism are not all the same thing?

In any event, Clinton was the nominee, not Sanders, and now most of the recriminations have revolved around whether her campaign made errors that cost her the tiny number of votes that would have turned around the Electoral College result.

Although I quite unexpectedly became a genuine admirer of Hillary Clinton during this campaign, there is certainly no reason to think that she did everything right or to defend her to the death. But most of the complaints about her campaign strike me as the most rank kind of 20/20 hindsight. "Oh, she lost by fractions of a percentage point in Pennsylvania and Wisconsin, and she underperformed her polls in Florida and North Carolina. She blew it!! Here's what she should have done differently."

Of course, such a thought experiment takes as given everything else in the campaign. If she had done more campaigning in states that she lost and less in states that she won, this thinking goes, she would have won both sets of states. Maybe, but color me skeptical, and it is certainly not a given.

More to the point, what exactly should she have done differently? Apparently, because many struggling working class white voters (some of whom had voted for Obama) voted against Clinton, she is now being faulted for failing to give them a reason to vote for her.

As an initial matter, it should be obvious that Clinton could have won -- rather easily, in fact -- if she had done better with other blocs of voters. Shortly before the election, for example, I described how America's youngest voters could take control of their destinies by voting for Clinton. As I noted above, too many of them decided that she was boring or uncool, and now they will face the consequences for the rest of their lives.

But the broader criticism of Clinton seems to be that she did not have a positive vision, to the point where the press made a big thing about one of the hacked emails in which a Clinton advisor worried about whether she had a good slogan. This has even led people to disparage Clinton's slogan as being inferior to Trump's.

Why should we take seriously the claim that "Make America Great Again" is somehow better than "Stronger Together" -- other than that Trump ended up winning the Electoral College? Viewed generously, Trump's slogan evoked greatness, patriotism, and nostalgia. Clinton's evoked strength, unity, and hope. This kind of criticism is the worst kind of navel-gazing from Beltway types.

The more substantive version of the Clinton-lost-because-she-ran-a-bad-campaign nonsense is the claim that she was peddling a collection of bullet points from policy papers that did not excite anyone. That is plainly untrue as a matter of how she actually campaigned, of course, but it neatly fits the "Hillary is a loser because she's such a nerd" narrative so beloved of the in-the-know commentators.

Moreover, the supposedly boring things that formed Clinton's platform should have been appealing to exactly the voters whom we are now told she fatally ignored. Clinton, not Trump, advocated for a higher minimum wage. Clinton, not Trump, supported the right of workers to join the unions that were the backbone of that great yesteryear of high wages. Clinton, not Trump, wanted to give parents the ability to send their kids to college without incurring crushing debt, fulfilling the American dream that each generation's children can climb higher than their parents.

But what about the claim that Clinton failed to focus on those issues enough, and especially the claim that she was more interested in attacking her opponent than making an affirmative case for why people who worry about their pocketbook issues should vote for her?

The only rational response to that question is: Did you see who she was running against? If she had failed to exploit her opponent's weaknesses, or if she had simply imagined that everyone would know and remember that he was a dangerous autocrat without her campaign having to say so, she would have been rightly accused of political malpractice. The one thing we know for sure in U.S. politics is that people have short memories.

So now, we are left wondering whether Clinton could have recalibrated her messaging in a way that would have allowed her to win in key states -- states where Republicans had been openly engaging in voter suppression efforts for years. Maybe, but it strikes me as mere piling on when other Democrats and pundits say, "She lost, so that means she must have done something wrong."

In a future column, I will have a lot more to say about whether Democrats have "ignored" or "talked down to" or in some other way alienated the white working class voters who formed the core of Trump's support. There is a raging debate about how much Trump's open bigotry played into those voters' decisions, and that is an important question.

Here, however, it is essential to point out that Clinton did not forget those voters, and she did not show disdain for them. Indeed, despite the Republicans' insistence on making the now-infamous "deplorables" comment a big deal, here is what Clinton actually said immediately after saying that some Trump voters were beyond her campaign's reach:

"But the other basket -- and I know this because I see friends from all
over America here -- I see friends from Florida and Georgia and South
Carolina and Texas -- as well as, you know, New York and California --
but that other basket of people are people who feel that the government
has let them down, the economy has let them down, nobody cares about
them, nobody worries about what happens to their lives and their
futures, and they're just desperate for change. It doesn't really even
matter where it comes from. They don't buy everything he says, but he
seems to hold out some hope that their lives will be different. They
won't wake up and see their jobs disappear, lose a kid to heroin, feel
like they're in a dead-end. Those are people we have to understand and
empathize with as well."

Again, no one could ever say after an election loss that they would not do anything differently. It is, however, important to remember what really happened on Election Day. More people voted for Clinton than Trump. Trump won by very narrow margins in states where Republicans turned out their own voters while they suppressed the votes of Clinton's backers.

In spite of all that, Clinton looked like she would win. For Democrats moving forward, they need to figure out how to do better next time, especially because Trump and the Republicans will shamelessly erect even more barriers for the Democrats to overcome.

What Democrats cannot do is turn on each other. They lost, and they need to work together to figure out what to do next. Carping on minor issues regarding Hillary Clinton's honorable campaign is not going to solve anything.

Thursday, November 17, 2016

Among all of the things that Donald Trump could do as president, what is the most frightening? The clear answer is that Trump and the Republicans could effectively end the prospect of free and fair elections. Before getting into that, however, we need to consider some other threats that we now face.

Sadly, there are plenty of other reasons to be scared, including Trump's threats against the free press and his promises to turn the so-called war on terror into an excuse to discriminate against people on the basis of religion, race, and nationality. Foreign policy is also a disaster waiting to happen.

Then there is the misogyny. How much damage will be done to women's rights in a world where concerns about sexism and even physical assaults will be dismissed as mere over-sensitivity and political correctness? Contraception, abortion, and everything else are now in the balance.

And Trump's economic proposals promise to worsen inequality and make a mockery of his claims that he would help the struggling middle class, especially his blue-collar supporters.

Still, I think that the most profound concern goes beyond all of those fundamentally important looming policy battles. Like many observers (including Linda Greenhouse in The New York Times and a number of commentators quoted in the Huffington Post, along with countless others), my concern is that the rule of law in the United States might now be nearing its expiration date.

In my latest column, I argued that there is every reason to think that Trump will be eager to test every supposed limitation on his powers. Tell him that he is not allowed to do something, and his ego and vindictiveness will go into overdrive, leading him to do what he wants while shouting, "Who's gonna stop me?!"

The simple answer should be that the president is not above the law, so the rest of the government will stop the president from exceeding his powers. Although government is supposed to be a system of laws and not men, however, it is real human beings in positions of leadership who must step up and stand in Trump's way. Based on the actions of the Republicans throughout the campaign, I am not confident that anyone will even try.

Even so, I do understand what must have driven NeverTrump conservative commentator David Brooks to end his first post-election op-ed with this dig: "After all, the guy will probably resign or be impeached within a year. The future is closer than you think."

Even if we might (against all evidence) think that Republicans in the House would dare to impeach Trump, or that a majority of Senators could consider voting to convict him and remove him from office, why would we imagine that they would do so in a vacuum, where Trump is not intimidating them and threatening them every step of the way?

After all, the president controls the military and the FBI, as well as dozens of other agencies with not merely guns but the power to ruin people financially and even arrest them and their families. If Trump is committing impeachable offenses, why would he not use every power available to him to get his way?

For now, however, let me put aside those more dramatic elements of the threat to the rule of law and return to the specific threat that I mentioned at the beginning of this column. Trump and the Republicans have every reason to make free and fair elections a thing of the past. Indeed, they are already well on their way to success.

Try to imagine a future in which Trump does not break down the legal norms that have guided this country to greatness. He does not ignore the Supreme Court. He places competent lawyers in the Office of Legal Counsel and even listens to them when they tell him that the presidency is not a dictatorship. So far, so good.

But imagine also that Trump's policies fail to make people better off, that he indulges his worst bigoted impulses, and his popularity plummets. He could face the possibility of defeat in 2020. What can he start doing today that will inoculate him against the will of the people four years from now?

He does not even need to "rig" the elections in a blunt sense, because all he needs to do is to help Republicans continue to do what they have been doing for years. This is not to say that Trump would be above resorting to those more blunt strategies, of course, but we can leave those aside for now.

In a column last month, I tried to understand why people like House Speaker Paul Ryan continued to support Trump even in the face of Trump's assaults on decency and his obvious contempt for Republicans (especially Ryan himself). I concluded: "Ryan's pet spending cuts and upward redistribution of wealth are so
important to him and his backers that they cannot even wait for four
years, during which time they could try to limit Clinton's actions and
then find a candidate in 2020 who is not Trump."

That still strikes me as a possible explanation, but I now think that the better explanation is not economic but electoral. Republicans could not afford to allow a Democrat to serve as president, even for four years, because she would have done what she could to roll back the Republicans' quite successful voter suppression laws and tactics.

Ryan and his cohorts (including Vice President-elect Pence) could not wait for 2020, because demographic trends are already running against them, and even this year their nominee could only win the electoral college by taking states where Republicans have openly engaged in voter suppression tactics.

"Had just over fifty-five thousand people in the three states with the
closest results—Michigan, Wisconsin, and Pennsylvania—changed their vote
preference to Clinton, the Electoral College would have aligned with
the popular vote, and many commentators would be exaggerating the
meaning of Clinton’s victory instead."

And Lizza did not even mention North Carolina, which had a larger margin of victory for Trump but which also was probably the worst of the states that had gleefully embraced the Supreme Court's gutting of the Voting Rights Act in Shelby County v. Holder in 2013. (Ohio was also a leader in voter suppression efforts, led by the supposedly moderate Governor John Kasich.)

Time was not on the Republicans' side. In order to avoid electoral oblivion, they had to make a last stand in 2016. Trump ended up being their nominee, which should have driven the Republican leadership away. But the alternative, in their view, was worse. It was not that Clinton was actually the demon that they made her out to be, but rather that having any Democrat in power was going to make it harder for Republicans to keep changing the election rules to keep themselves in the game. This was an existential threat.

The Republicans' anti-democracy tactics, moreover, have not been limited to voter suppression efforts. There is, of course, the gerrymandered Republican majority in the House. There were times during the general election campaign when Clinton opened huge leads in the polls and large numbers of Republicans were abandoning ship (albeit only temporarily in some cases). The political question then became whether the Democrats could retake the Senate and even the House.

Taking the Senate was readily achievable (after all, even with the Clinton loss, the Democrats defended their one vulnerable seat and picked up two more), but the thought among the professional pollsters was that Clinton would have to win by something like ten points in the popular vote for Democrats to have a chance to eke out control of the House.

In some sense, this is incredibly depressing. The courts have done little to nothing to stop gerrymandering, with the result that the Republicans could keep winning the House even if they had the support of, say, only 46% of the voters. On the other hand, it means that the Republicans had not completely closed off the possibility of Democrats' winning back the people's house.

And this is where my story becomes one of optimism rather than resignation. Notwithstanding the apocalyptic future histories that I have written here and in my other recent columns, the reason that we all need to fight harder now is that it is simply wrong to say, "It's all over now." Even though I strongly suspect that Trump will stop at nothing to maintain power, there is still reason to fight.

Think of it this way. So far, the Republicans have succeeded in making elections much more difficult for Democrats to win. Rather than an even playing field, Democrats have been running uphill. Now, we can expect that Trump and the Republicans will try to tilt the playing field even further, and they might make us carry anvils while we try to get to the top.

The reasons to fight are thus to prevent those election-rigging strategies from being adopted in the first place, and to win future elections even if we have to overcome all of the obstacles and disadvantages that the Republicans can impose on the majority of our country.

Like all writers, I am constantly updating a list of
future topics. After Trump's unexpected squeaker of a win, many of my planned columns are now in the dustbin. No more need to write "Republicans Will
Impeach Clinton Over the Debt Ceiling," or "Democrats' Senate Majority
Expires January 3, 2019," or many others Trust me, they would have been great!

Even so, some topics only became more important in light of Hillary Clinton's shocking loss. In a column last week discussing the media's narrative that undermined Clinton's election chances, I noted that I would have written that column either way, because the media's shortcomings seriously undermine the health of this country's political system.

Similarly, I would have written something about the Republicans' all-out voter suppression in any event, but the question of the fairness of our elections is now arguably the most important issue facing our country. Trump and the Republicans have every reason to try to change the rules to allow themselves to stay in power, no matter how unpopular they become.

If they can be stopped, we will still have a free country. If not, Trump and the Republicans will probably see the public relations value in continuing to go through the motions of holding elections, but the results will be no more in doubt than the 97% wins by dictators-for-life in countries that we like to think are politically beyond the pale.

That is the challenge that confronts us now. Given the power and determination of those who are afraid to let the people speak at the ballot box, we cannot be assured of success. But there is no other choice but to fight.